Native Customary Rights, Logging and Land Disputes in Sarawak and Sabah

A longhouse community says a stretch of forest has belonged to it for generations. A timber or plantation company holds a licence, issued by the state, that covers the same ground. Both point to the law. In Sarawak and Sabah, that collision has been argued in courtrooms for more than two decades — and the courts have not always agreed on where the line falls.

This article sets out, factually, what Native Customary Rights are, how they are defined in law, and how they intersect with logging and plantation concessions. It describes the leading court decisions and the range of positions held by communities, companies and state authorities. It does not take a side.

What are Native Customary Rights?

Native Customary Rights (NCR) are rights over land that indigenous communities acquired through customary use, rather than through a document of title issued by the state. In Sarawak, the framework is the Sarawak Land Code.

According to the Land and Survey Department, Sarawak, native customary land is defined under Section 2 of the Land Code as land where native customary rights — communal or individual — were lawfully created before 1 January 1958 and still subsist, together with land declared to be reserves under Section 6 and interior area land where rights were created under a permit under Section 10.

Section 5(2) of the Land Code lists the methods by which those rights could be created:

Method under Section 5(2)	In plain terms
Felling of virgin jungle and occupation of the cleared land	Clearing and settling forest
Planting of land with fruit trees	Establishing orchards
Occupation or cultivation of land	Farming and living on the land
Use of land for a burial ground or shrine	Cemeteries, sacred sites
Use of land of any class for rights of way	Paths and access routes

In Sabah, land is governed by the Sabah Land Ordinance (Cap. 68). The Malaysian Sustainable Palm Oil body describes three categories relevant to indigenous land: Native Title (NT), which recognises individual native ownership; Communal Title (CT), land held for communal use; and Native Customary Rights (NCR), recognised for land occupied and used according to customary practice even without a formal title.

Where do the disputes come from?

The friction is structural. The state issues timber licences and provisional leases for plantations over large tracts of land. Communities assert customary rights over parts of the same tracts. When the two parties describe the same ground differently — one as licensed state land, the other as customary land — the disagreement moves to the courts.

Two questions recur:

• Extent — does a customary right cover only the settled and cultivated core, or does it extend to the wider forest a community uses for hunting, foraging and gathering?
• Legal force — which customary categories are recognised by written law, and which are matters of custom without statutory backing?

The Iban language captures the distinction that has been most heavily litigated. As set out in the TR Sandah proceedings, temuda is cultivated land later left fallow; tembawai is an old longhouse site; pemakai menoa is the wider territorial domain of a community, including farms, gardens, groves, water and forest; and pulau galau is the reserved communal forest within it.

What have the courts decided?

Malaysian courts have accepted, over a series of cases, that at least some native customary rights are legally enforceable and can survive alongside statute. The reach of that recognition has been the contested part.

An early landmark was Nor Anak Nyawai & Ors v Borneo Pulp Plantation Sdn Bhd, brought by an Iban community near Bintulu, Sarawak, after a plantation licence was granted over land they claimed. The High Court recognised that the community held native customary rights over the disputed area. On appeal the courts narrowed the outcome, indicating the recognised right attached to the settled and cultivated area rather than to the wider forest used for foraging.

The most cited recent decision is Director of Forest, Sarawak & Anor v TR Sandah & Ors, reported at [2017] 2 MLJ 281 and decided on 20 December 2016. The claimants asserted rights over roughly 5,639 hectares derived from pemakai menoa and pulau galau. A Federal Court 3:1 majority held that these communal categories carry no force of law, because they are not reflected in the codified custom (such as the Tusun Tunggu and the Adat Iban Order 1993); by contrast, cultivated temuda was treated as recognised. A dissenting judgment took the contrary view on the enforceability of the wider customary rights.

The claimants later sought review. The Federal Court dismissed the review application in 2019. The Malaysian Bar, commenting on that outcome, characterised it as a missed opportunity and called for legislative action, including amendments to ensure judges with Bornean experience sit on Sabah and Sarawak appeals — a position advanced by the Bar rather than a finding of the court.

What are the different positions?

The parties frame the same facts differently. Presented neutrally:

• Many indigenous communities and their advocates argue that pemakai menoa and pulau galau are integral to customary land and should be recognised as enforceable, and that codified custom does not capture the full body of adat.
• State authorities in Sarawak have maintained that rights created outside the methods and dates recognised by the Land Code do not, by themselves, create title over communal forest, and that licences are issued over land treated as state land.
• Companies holding licences and leases generally rely on the validity of the instruments granted to them by the state and on the courts’ rulings on the extent of recognised rights.

Beyond the courtroom, some communities have erected blockades on logging roads to halt operations on land they claim. These actions have themselves generated legal proceedings, both civil and criminal. The facts of individual blockades vary and many remain contested.

What’s next?

Several threads remain live. Individual NCR claims continue to be filed and litigated in the High Courts of Sabah and Sarawak, and the boundary drawn in TR Sandah — recognising cultivated temuda while denying force of law to pemakai menoa and pulau galau — continues to be tested and, in some later cases, revisited. There have also been calls, including from the Malaysian Bar, for legislative rather than purely judicial resolution.

For anyone tracking a specific matter, the authoritative record is the court judgment itself and the relevant state statute — the Sarawak Land Code or the Sabah Land Ordinance — rather than secondary summaries. This article is an unpublished AI draft and has not been reviewed by a lawyer; it is not legal advice, and specific situations should be checked against primary sources and qualified counsel.